Supreme Court New South Wales Medium Neutral Citation: R v Diallo & Ors (No 2) [2024] NSWSC 853 Hearing dates: 1-3 July 2024 Date of orders: 15 July 2024 Decision date: 15 July 2024 Jurisdiction: Common Law Before: Hamill J Decision: The evidence of YA's statement recorded on the body worn video is inadmissible Catchwords: CRIMINAL LAW – evidence – admissions by conduct – lies and consciousness of guilt – statements made by accused near the scene of the murder – no adult, lawyer or support person present – statutory prohibition on admissibility – whether exception to prohibition established – where questions asked in urgent circumstances – accused member of suburban gang – differences leading to violent confrontation – overview of prosecution case – eye witness testimony by other witnesses – taking the contempt charge rather than an affirmation or oath – repeated mantra of "no comment" – circumstantial case – assessment of accused's vulnerability – palpable fear and confusion – satisfactory explanation of absence of adult – a lot happening – other factors militating against admission of evidence – evidence not admissible Legislation Cited: Child Welfare Act 1939 (NSW), s 81C Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 13, 13(1)(a), 13(1)(b) Evidence Act 1995 (NSW), s 128 Cases Cited: McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30 Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King (2023) 276 CLR 299; [2023] HCA 5 R v Basha (1989) 39 A Crim R 337 R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep) R v H (A child) (1996) 85 A Crim R 481 R v Jogee [2017] AC 387; [2016] UKSC 8 R v KS (No 2) [2023] NSWSC 1475 R v Phung and Huynh [2001] NSWSC 115 R v Warren [1982] 2 NSWLR 360; (1982) 5 A Crim R 321 R v Williams (Supreme Court (NSW), 9 August 1982, unrep) Texts Cited: N/A Category: Procedural rulings Parties: Rex (Prosecution) Ibrahima Diallo (Defendant) AG (Defendant) YA (Defendant) AD (Defendant) Panashe Morgan Ryan Karise (Defendant) Representation: Counsel: E Balodis and J Sfinas (Rex) R Wilson SC (Diallo) M Avenell SC (AG) W Terracini SC KC and P Kondich (YA) B Robinson (AD) M Smith (Karise) Solicitors: Office of the Director of Public Prosecutions (Rex) Crimcorp Defence Lawyers (Diallo) Sydney Criminal Law Specialists (AG) King & York Lawyers (YA) Wiltshire & Wroughton Legal (AD) McGirr & Associates (Karise) File Number(s): 2022/00052005; 2022/00051961; 2022/00052010; 2022/00052239; 2022/00091174 Publication restriction: Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW). JUDGMENT 1. YA is to stand trial along with four co-accused. [1] Each is charged jointly with the murder of Oliver Coleman (count 1), the attempted murders of EO and EC (counts 2 and 4) and, in the alternative, wounding EO and EC with intent to inflict grievous bodily harm (counts 3 and 5). This judgment relates to the first of many pre-trial arguments and objections to be determined before a jury is empanelled. 2. YA objects to evidence of the things he said to police when he was arrested shortly after the events giving rise to the charges. He was arrested while hiding under a carport in a suburban house a short distance from where the stabbings occurred. YA raises the objection because he was a child at the time and the "admissions" were made in the absence of a responsible adult, support person or lawyer. To place the objection in context it is necessary to set out, in very short form, the case the prosecution is expected to present. 3. The incident in which Oliver Coleman was killed took place at about 10:00pm on 1 September 2021 in or near William Street in Blacktown, a suburb in Western Sydney. The prosecution case is that the offences arose out of some differences between so-called "street gangs" based in, and relatively proximate to, the murder scene. It alleges that members of a gang called "MOB", an acronym for "Money Over Bitches", targeted the victims because of their membership of a rival gang known as "Murda" or "Murda60" and/or an associated group known as "QSB", an acronym for the "Queen Street Boys". The deceased was associated with both Murda and QSB, as were the alleged victims of counts 2-5. YA was associated with MOB. 4. The prosecution case is that YA was part of a joint criminal enterprise to kill or inflict serious bodily harm on Oliver Coleman himself or other members of the rival gangs. In the alternative, the prosecution will assert that YA joined a less serious criminal enterprise (to assault or wound) but was aware of the real (not remote) possibility that murder may be committed. The alternative case is based in the Australian concept of criminal liability by "extended joint criminal enterprise". [2] In the case of some of the co-accused the prosecution will assert that they are principals in the first degree – that is, they did the relevant stabbing with the requisite intention – but in all cases the prosecution will put a case based on joint criminal enterprise and, alternatively, extended joint criminal enterprise. 5. In many respects, the evidence relied on by the prosecution is circumstantial. It relies on the stabbing of the three victims, the death of Mr Coleman and injuries to the other two men, the presence of the accused at or near the scene, the purchase or possession of a knife or knives, and communications between the co-accused in the lead up to and around the time of the stabbings. While I was reserved in this (and other) evidentiary rulings the parties advised the Court that, contrary to earlier indications, no agreement has been reached as to the many communications to be tendered in the prosecution case, and that there are, in fact, literally hundreds of individual objections to be determined before the trial will be ready to commence. I have heard submissions by two of the five accused (AD and AG) as to the material derived from AD's telephone and indicated preliminary rulings on all but three of those objections. Despite case management orders and directions made on 10 and 30 May 2024, the state of those objections is best described as a schemozzle. On Thursday 11 July 2024 (the ninth day of the pre-trial hearing), yet more case management directions were made and arguments on the admissibility of these volumes will commence on 16 July 2024. Nobody suggested that the fate of those objections impacts on the controversy around the admissions made by YA in the body worn video. 6. There is expected to be some eye-witness testimony of what occurred on 31 August and 1 September 2021. Much of this evidence will come from nearby residents. It is also expected that certain members of the rival gangs will be called to give evidence. However, based on evidence given on a Basha inquiry over the last seven days or so, [3] these witnesses will be distinctly unhelpful. One such witness said on the voir dire that he had been to the gym and then slept through the killing (seemingly for many, many hours). [4] Another claimed he had no memory of virtually anything because he had been drinking. [5] A third, having received legal advice and when asked if he would take the affirmation or the oath, indicated he would take the contempt charge and walked out of the AVL suite. [6] A fourth answered some questions but when the examination ventured close to the events of 1 September 2021 repeated a mantra of "no comment" despite being directed to answer and having the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (NSW). [7] What these witnesses might say if they give evidence before the jury is anybody's guess. 7. For the purposes of the present argument, it is unnecessary to be comprehensive in summarising the case against YA. However, one piece of evidence that is expected to be led in his case is a statement he made with the help of his lawyers on 18 April 2023 which was then given to the investigating police. [8] The agreement between the Prosecutor and Senior Counsel for YA that this statement would be led in the prosecution case, reached after court on 2 July 2024, came as a surprise to the four co-accused. All four have now indicated that they will seek a separate trial (from YA) because the statement implicates them as well. On one view the statement comes perilously close to an admission of guilt by YA to murder by extended joint criminal enterprise. Relevantly, the statement refers to the evidence to which objection was taken. It says at paragraph [42]: "I remained under the carport until I was discovered by a police officer, who asked me why I was hiding. I was scared, so I lied, saying that I had been robbed." 1. The prosecution seeks to lead evidence of the conversation upon which that paragraph of YA's statement is based. The prosecution agrees that if the evidence it seeks to tender is ruled to be inadmissible, paragraph [42] of YA's statement should be removed. 2. YA's arrest and the impugned conversation was recorded by a body worn video camera worn by Senior Constable Keith Furner. It includes a conversation, or series of four conversations, between YA and the police officers who arrested him. It occurred a short time after the killing. YA was found hiding under a car in a carport at a house around the corner from where the stabbings occurred and the conversations occurred at that location and a short distance away after he was moved. The recording was played via a DVD in court on the voir dire and I have since watched it again in chambers. In addition to the DVD, a transcript was tendered without objection (Ex VD 1) and, when various errors in the transcript were pointed out to the parties, a more accurate version was provided and became Ex VD 1A. 3. YA told lies to the police about how he came to be present at the scene. There is no dispute that the conversation is relevant because it is capable of establishing in YA a consciousness of guilt concerning the events that led to Oliver Coleman's death and the wounding of the other two men. It has a capacity to impact on the jury's assessment of any assertion of self-defence and could possibly go to YA's intention and participation in the joint criminal enterprise. As I understand the issues to be litigated in YA's case, the probative value of the conversation is potentially quite high. 4. The Prosecutor presses the whole of the conversation (or the whole of each conversation). [9] However, after the Court viewed the body worn video footage and during the oral argument on the issue, he submitted fairly and reasonably that he "could understand your Honour drawing a line somewhere" and that his "core request" related to the first relevant lie told by YA. [10] The first lie was that YA was brought to the scene by "Adam" (a reference to a person called Adam Darwish who has since confirmed that he did not see YA that night). The truth is that YA travelled to the scene with members of MOB, [11] a matter he acknowledged in his statement of 18 April 2023. [12] 5. At the time of his arrest, YA was a child, as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) ("the Act"). He was aged about seventeen years and three months. As such, he was entitled to the protection afforded by s 13 of the Act. Section 13 recognises the vulnerability of children when in police custody or when being questioned by people in authority. It mandates, as a general prerequisite for admissibility of admissions made by a child, the presence of a support person. 6. The pre-cursor to s 13 [13] was considered in several cases cited in the written submissions of YA's counsel and the Prosecutor. Those cases emphasised the need for children to receive "special protection… from themselves rather than from any impropriety on the part of the police" and the fact that a support person "is required to ensure that there is no unfairness or unconscionable conduct in the interview". [14] In R v Phung and Huynh [2001] NSWSC 115 Wood CJ at CL emphasised at [39] that "the provisions need to be faithfully implemented and not merely given lip service or imperfectly observed". 7. Section 13 provides: 13 Admissibility of certain statements etc (1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless— (a) there was present at the place where, and throughout the period of time during which, it was made or given— (i) a person responsible for the child, (ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child, (iii) in the case of a child who is of or above the age of 14 years—an adult (other than a member of the police force) who was present with the consent of the child, or (iv) an Australian legal practitioner of the child's own choosing, or (b) the person acting judicially in those proceedings— (i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and (ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings. (2) In this section— (a) a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and (b) a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and (c) a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child). (3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law. 1. An extremely helpful discussion of s 13 can be found in the judgment of Yehia J in R v KS (No 2) [2023] NSWSC 1475. Her Honour analysed several of the cases to which I have made passing references and said: "82. As is evident from this brief overview of past cases, a more expansive view has developed about the intent of the statutory provisions governing the treatment of children upon arrest, which include stringent requirements that a child be informed of his/her rights. The requirements are not, however, limited to simply informing a child of their rights. They extend to assisting a child who is under arrest in exercising those rights. The requirements must be implemented in a meaningful, as opposed to a perfunctory way. 83. These requirements are in place for good reason. A child is lacking in maturity and a reduced capacity for careful consideration and reflection about the consequences of his/her decisions. Children are generally more impulsive and reactive than adults. Their position is inferior to that of police officers, not only by virtue of their age and immaturity, but also by virtue of the difference in power between persons in positions of authority and individuals in subordinate positions that result in vulnerability on the part of the subordinate. 84. The experience of being arrested for a criminal offence, in this case, the most serious criminal offence of murder, would be a daunting one for any adult, let alone a 16-year-old child. Children are in a special category by virtue of their vulnerability. The relevant legislative regime is designed to recognise and protect their interests and places a heavy responsibility on police (in particular custody managers) to ensure that those protections are implemented in a meaningful way. 85. In Williams at 7–8, Roden J said the following of the precursor to s 13 of the CCPA, s 81C of the Child Welfare Act: 'It is based, I believe, upon the proposition that children and young persons require special protection, and by that I mean protection from themselves rather than from any impropriety on the part of the police … The Child Welfare Act provision, as I understand it, recognises what could be described as a rebuttable presumption that, within the context of the interview by adult police officers in a police station, a child or young person would be likely to be overawed and to feel at a considerable disadvantage.' 86. The role of police in investigating offences includes, but is not limited to, an examination of the crime scene, canvassing the area, speaking to witnesses, and, upon the arrest of a suspect, endeavouring to question that suspect in connection with the investigation. The investigatory process will often require interviewing suspects in a timely fashion, to obtain a contemporaneous account, uncontaminated by the passage of time. However, there must be a balance between the investigator's objective of obtaining an account from a suspect, and the protection of a suspect's right to silence. 87. This is particularly so where the suspect is a child. A child's particular vulnerabilities are a matter that should remain at the forefront of consideration when determining an application such as this. The balancing exercise that is required can involve a tension between the investigatory process on the one hand, and the protection of the rights of the child suspect on the other. 88. The provisions protecting the rights of a child in police custody are purposive. The [clear] intent is directed to achieving a particular aim, namely, protecting children, not simply from police misconduct or impropriety, but from their own immaturity, impulsivity and reduced capacity for consequential thinking." 1. One of the matters emphasised in the authorities is that s 13 (and its statutory predecessor) is concerned with the admissibility of admissions or other statements made by children. It is not designed to, and does not, interfere with police officers' capacity to conduct investigations. For example, in R v Warren [1982] 2 NSWLR 360; (1982) 5 A Crim R 321 Lee J (with Street CJ and Moffitt P agreeing) said at 367: "The section is not intended to control interrogation by the police of persons who are under the age of eighteen years, in the sense of ensuring that before any interrogation takes place there shall be a person present as required by sub-s (3). All that the section does is to prevent admission into evidence of those particular statements (using the word generally to include statements, confessions, admissions, or particular information) which are not made in the presence of one of the persons designated by sub-s (3). It does not, for instance, operate to prevent the police from making inquiries as a result of any statement (in the sense just mentioned) made in a police station by a person under eighteen years of age, even though that statement cannot itself be admitted in evidence in proceedings against that person which later take place." 1. The evidence of the interactions between the police and YA is best considered by reference to what can be seen and heard in the audio-visual recording from the body worn camera. It is also contained in the transcript and the statements of Officers Furner, Wallace and Tuma. However, it is only the actual recording that demonstrates the speed with which certain things were said (including cautions or partial cautions as to the accused's right to silence), YA's demeanour as the officers spoke to him, the tone of the officers' questioning, and the urgency with which YA repeatedly asked the police to remove him from the scene. 2. My assessment of the evidence is that YA's demeanour betrayed a state of fear and confusion. Some matters of significance include: * The initial interaction between Mr Tuma and YA (at 23:03:26) was very quick. While YA was informed of his right to silence and that things were being recorded, I am unable to conclude that he understood those things with any clarity. His response of "O.K." is not persuasive evidence that he understood. Nor was it clear that he understood he was being recorded until Mr Furner spoke over Mr Tuma quite loudly and announced that he was wearing a body worn video camera. * When told he was a suspect in a "homicide" and asked if he knew what a homicide means, YA said "no". Mr Tuma said "A murder. Murder, all right" to which YA responded by saying, "I just came here with Adam." The tone of his voice at that stage, which is difficult to describe in words, is not without significance. * In the second interaction (at 23:09:43) Mr Furner told YA he would be taken to the police station. Thereafter, YA said repeatedly words to the effect of "Just take me to the station, whatever station" and "can I tell you at the station?" Throughout this interaction, my impression is that YA was exhibiting considerable fear. * A lot of the four interactions took place with YA on the ground, at times on his knees, looking up at the police officers, or seated cross-legged with his hands behind his back (presumably in handcuffs). Again, YA appeared to be frightened. His supplicant position heightens the impression of YA's vulnerability. * The police officers were persistent in asking questions including after YA repeated that he wanted to be taken to the police station, "any station". This is not a criticism of the officers, who were investigating a homicide in urgent circumstances, but it is relevant to the issue of admissibility. * At around 23:10:45, Mr Furner asked what had happened and YA started to answer. He was interrupted to be reminded of his right to silence. When he was asked again what happened (23:11:20), YA said, "So should I go to the station? I don't know, what do you want me to do." * At 23:11:36 YA said, "I don't want to say anything here." * YA looks very young in the video, a matter which the experienced Prosecutor conceded very fairly in oral argument. [15] 1. There is more that could be said about the series of interactions but that is sufficient to explain my conclusions. 2. Turning to s 13(1)(b)(i) of the Act, I am satisfied that there was a "proper and sufficient reason" for the absence of an adult from "the place where" and "throughout the period" of these conversations. The police arrested YA at the scene of a suspected murder and the suspicion that he was involved in the violent incident was real and obvious. There were people at or near the scene who had serious stab wounds, some of the people involved in the fracas were still near the scene or attempting to flee, and police were no doubt establishing crime scenes and searching for evidence. As Senior Constable Furner said, "there's a lot going on right now." These were proper and sufficient reasons for not arranging for an adult to attend the scene. 3. However, moving on to s 13(1)(b)(ii), I do not consider the conversation should be admitted in evidence. I accept the evidence has some probative value as evidence supporting a consciousness of guilt. However, as others before me have said, the requirement of a support person in s 13 should not simply receive lip service and the provisions exist to protect children from themselves rather than from improper conduct by the police, although it also has work to do in that regard as well. It is a statutory recognition of a child's vulnerability and YA's vulnerability in the circumstances is palpable based on a review of the evidence. 4. I accept the Prosecutor's submission that most or all of the previous authorities were concerned with statements or admissions made in the course of formal interviews or when a child was in custody at a police station. However, the section is not reserved for such circumstances and the circumstances prevailing in this case meant that YA's vulnerability was substantial. 5. I also accept that YA was not a very young person at the time of the conversations (being just nine months short of being an adult at law), that the police told him on several occasions that he did not have to answer their questions, and that YA persisted in and expanded upon the lie he told at the outset. Even so, YA's vulnerability and the confusion and fear he exhibited, taken with the purpose of, and policy behind, the exclusionary provision outweigh these matters. 6. Accordingly, the evidence of YA's statement as recorded on the body worn video is inadmissible. ADDENDUM 1. After this judgment was delivered, the Prosecutor sought clarification as to the scope of this ruling. Counsel for YA acknowledged that the objection was only to the words spoken by YA and that there was no objection to evidence of YA's arrest and the finding of a mask or similar item(s) on his person. This coincided with my intention in making the ruling and, I think, the words employed in paragraphs [2], [21] and [24] of the judgment. In any event, for the sake of clarity, it is YA's words which are inadmissible and the parties are in agreement that other aspects of his arrest will be admitted before the jury. I will leave it to the parties to determine the manner in which that evidence is presented. ********** Endnotes 1. Subject to the separate trial application notified by each of his co-accused in the course of the present objection. 2. See, for example, McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37; Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) (2016) 259 CLR 380; [2016] HCA 30; Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King (2023) 276 CLR 299; [2023] HCA 5 and contra R v Jogee [2017] AC 387; [2016] UKSC 8. 3. R v Basha (1989) 39 A Crim R 337. 4. Tcpt (1/7/24) pp 54-61. 5. Tcpt (1/7/24) pp 38-46. 6. Tcpt (2/7/24) pp 69-70. 7. Tcpt (8/7/24) pp 166-178. 8. Ex VD 4. 9. See for example, written submissions (MFI 8). 10. Tcpt (3/7/24) p 96. 11. Ex VD 4 [23] and [34]. 12. Ex VD 4. 13. Child Welfare Act 1939 (NSW), s 81C. 14. R v Williams (Supreme Court (NSW), 9 August 1982, unrep); R v Dunn (Court of Criminal Appeal (NSW), 15 April 1992, unrep). See also, for example, R v Warren [1982] 2 NSWLR 360; (1982) 5 A Crim R 321; R v H (A child) (1996) 85 A Crim R 481 and R v Phung and Huynh [2001] NSWSC 115. 15. Tcpt (3/7/24) p 96. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2024